Flickr Photo by An Honorable German

(update below)

Information shared by senior Obama administration officials with journalists on the “kill list” and drone wars in Pakistan, Somalia and Yemen is not the subject of a leaks investigation being investigated by two US attorneys, according to Reuters. The investigation, which was launched as result of bipartisan concern about intelligence leaks, will focus on disclosures on a CIA underwear bomb plot sting operation in Yemen and the Stuxnet virus that was used to attack Iran.

As the report from Reuters explains:

The CIA has not filed a “crime report” with the Justice Department over reports about Obama’s drone policy and a U.S. “kill list” of targeted militants, an action which often would trigger an official leak investigation, two sources familiar with the matter said. They requested anonymity to discuss sensitive information.

By contrast, the CIA did file a “crime report” following publication by the Associated Press last month of a report disclosing the foiling of a plot by Yemen-based Al Qaeda in the Arabian Peninsula to attack an airliner using a newly designed underwear bomb, sources said.

Officials said the second leak investigation involves a series of revelations in a book and article by a New York Times journalist about the alleged role of U.S. agencies in cyber-warfare activities against Iran. These include the creation and deployment of a virus known as Stuxnetwhich attacked Iranian uranium enrichment equipment.

Sen. Dianne Feinstein, a Democrat who has been as fiercely supportive of an investigation as a number of Republicans, also confirmed this yesterday when she sad she does not support the Republican push led by Sen John McCain for a special prosecutor to investigate the leaks: “We can move ahead much more rapidly…Instead of one special prosecutor, you essentially have two here, one is the Yemeni situation and the other is the Iranian cyber situation. I think you’re going to get there much quicker.”

Again, what this means is the content of the major news story that ran in the New York Times, which was written by Jo Becker and Scott Shane, on the “kill list,” and Daniel Klaidman’s book Kill or Capture, which includes many firsthand accounts of deliberations over the drone program within the administration, will not be subject to investigation. The two attorneys, Ronald C. Machen, the United States attorney for the District of Columbia, and Rod J. Rosenstein, his counterpart in Maryland, who Attorney General Eric Holder appointed to lead the investigation, will only be looking into Stuxnet and the CIA underwear bomb plot sting operation in Yemen in May.

I’ve written extensively on the leaks investigation already. It is my contention (along with others like former Justice Department whistleblower Jesselyn Radack) that the fervor and frenzy with which members of Congress are pushing forward this investigation is likely to lead to some kind of terrible anti-leaks legislation being proposed and possibly even passed and signed into law. Such legislation would be another blow against whistleblowers and investigative journalists who have already been subjected to an administration which has waged an unprecedented war on leaks and whistleblowers, and at the same time, used secrecy powers to manipulate public opinion on key national security matters to keep the public in the dark on aspects of these matters that might invite scrutiny.

What sort of implications does the decision by the Justice Department to not investigate disclosures on the drone program have? For one, it seems as if this is a great development for the American Civil Liberties Union (ACLU), which has been trying to force the CIA to disclose records on the agency’s targeted killing program.

Currently, the ACLU has an ongoing FOIA lawsuit. The CIA has provided a Glomar response to the lawsuit saying it can “neither confirm nor deny” the existence of a targeted killing program. Just last week the ACLU filed a reply brief that argued the CIA’s Glomar response is unlawful because the existence of the CIA drone program has already been specifically and officially disclosed and (2) the court owes no deference to the government’s argument that it has not officially acknowledged the existence of the CIA program.

The group specifically called on the court to recognize that “media leaks” related to the program were exactly the kind of “selective disclosures” that FOIA was “enacted to prevent.”

For more than two years now, senior government officials have freely disclosed information about the CIA’s drone program, both on the record and off, while the CIA has insisted to this Court and others that the program cannot be discussed, or even acknowledged, without jeopardizing national security. One consequence is that the public’s understanding of the effectiveness, morality, and legality of the government’s bureaucratized killing program comes solely from the government’s own selective, self-serving, and unverifiable representations concerning it. This is not simply lamentable but dangerous, and, again, it is precisely what the FOIA was designed to prevent.

If there is going to be no investigation into the release of information on how drones are being used to execute terror suspects abroad, it would seem a judge should have no problem letting the ACLU have the records they are requesting. There are multiple mentions of the CIA in Klaidman’s book. There is no way one could read his book and walk away thinking the officials have a problem with acknowledging the existence of the covert drone program. So, if officials who talked to Klaidman or even Becker or Shane are not going to be investigated, it suggests the administration does not view the publicity of this information as being that detrimental to national security and at least some of the CIA records being requested could be released to the ACLU.

The other point is that this only sharpens the rancorous calls from Republicans for a special counsel to investigate the leaks. As Senator Saxby Chambliss says in the Reuters report, “One of the problems with the Attorney General’s decision is that each prosecutor will investigate a separate leak – one on the AQAP bomb plot and one on the Stuxnet story…So, it appears that no one will investigate any of the other recent leaks and no one will be taking a high-level look at whether there is a pattern to these leaks. We need one lead Special Counsel in charge of all of the related leaks.”

Republicans pushing for a leaks investigation do not support only investigating the release of information on Stuxnet and the bomb plot sting operation. Not having an attorney investigate the drone program means the leaks investigation will lack legitimacy. It means Republicans have ammunition to turn the Obama administration’s leaks problem into an even greater wedge issue in an election year.

Finally, this signals officials can talk about drones, even though the program is sensitive or classified, and not face prosecution. They can share details that make the President look like a righteous and good warrior. They can use any aspect of the drone program to make Obama look strong on national security in an election year. However, the administration does draw a line. The administration will not grant immunity to officials who openly talk about covert cyber warfare operations or leak details about undercover CIA operations involving individuals who infiltrate terrorist cells.

Given the fact that the public would likely be unable to get any judge to force the government to produce documents on covert cyber warfare or CIA undercover sting operations in foreign countries in a FOIA lawsuit, it’s good to know that the administration might abide by its own secrecy standards and hold someone accountable.

Update

A DC Circuit Court will hear the ACLU’s case on September 20. In the meantime, think about all the information on drones the Obama administration can selectively leak to the media as they continue to fight this FOIA request in court.